Nordyke gun case nears end

Posted Sat, June 2nd, 2012 8:24 am by Lyle Denniston

One of the nation’s longest-running court battles over gun rights staggered toward its end on Friday, leaving uncertain its final legacy in the development of Second Amendment law. The en banc Ninth Circuit Court reached a final decision in the celebrated case of Nordyke v.King (Nordyke VI) without even settling on the constitutional test that gun-regulating laws must satisfy — probably the most important issue still open.

Approaching its 13th anniversary in the courts, the Nordyke case at one time was on the leading edge of establishing gun possession as a personal constitutional right — before the Supreme Court embraced that idea in 2008 in a District of Columbia case. And it also was out in front on extending such a right to the state and local level — before the Supreme Court so decided in 2010, in an Illinois case.

As it emerged Friday as NordykeVI, on its second round of en banc review, the case brought a three-and-a-half page ruling unanimously dismissing Russell and Sallie Nordyke’s Second Amendment claim but giving them a qualified right to put on gun shows at the fairgrounds in Alameda County, California. The dismissal order was unanimous, but the failure to define a constitutional standard split the judges 7-4.

If that is the final form of the decision (the three opinions issued in the case suggested that it may not be over yet), it would not appear to be a good candidate for Supreme Court review. The Nordykes can hold their gun shows, if they abide by a “safety” restriction on gun handling, and Alameda County’s board of supervisors has withstood the Second Amendment challenge.

There was never any dispute in the case that the Nordykes were legitimate gun dealers who would sell only firearms that were legal under federal and state law. But the county, since 1999, had barred them from the fairgrounds under an ordinance forbidding gun or ammunition possession on county property. No gun, loaded or unloaded, could be on Alameda’s public property — with the exception of its use in a movie, other theatrical production, or an “event,” if the gun were “secured to prevent unauthorized use.”

The Nordykes promptly sued, in September 1999, and the courthouse saga began, and along the way failed to get Supreme Court review but appeared in District Court and the Ninth Circuit repeatedly.

The Nordyke VI result, in an opinion written by Circuit Judge Susan P. Graber, concluded with this observation: “In the present case, they [the Nordykes] cannot succeed, no matter what form of scrutiny applies to Second Amendment claims.” Thus, the seven-judge majority refused to announce any constitutional standard: rational basis, heightened scrutiny, or strict scrutiny.

The Supreme Court itself in its 2008 decision in District of Columbia v. Heller did not lay down such a standard, and lower courts have been struggling over how to define one. The four judges who did not go along with Judge Graber’s opinion, but agreed that the case should be dismissed, wanted a form of heightened scrutiny — gun controls would violate the Second Amendment if they put a “substantial burden” on gun rights. That would make it somewhat easier for gun advocates to challenge control laws, but not as easy as if the standard were the toughest — strict scrutiny.

The Supreme Court has yet to take a case to establish the standard of review, but a number of cases are continuing to develop, and the issue will inevitably reach the Justices.

In the Nordyke case, the difference at this point was that Alameda County officials, after insisting for years that no gun shows could be held on county property, had told the Circuit Court in the latest round that it considered gun shows to come within the exception written into the ordinance for an “event” and that guns could be sold there if a cable attached the firearm to a table or some other fixed object, in the way that electronics devices are tethered in stores to thwart shoplifting. This, the county supervisors said, would allow potential buyers at gun shows to handle the merchandise adequately.

Judge Graber wrote that the court would hold the county to that concession, and, with that, the Nordykes “cannot state a viable Second Amendment claim…No matter how broad the scope of the Second Amendment — an issue that we leave for another day — it is clear that, as applied to [the Nordykes’] gun shows and as interpreted by the county, this regulation is permissible.”

But, at the end of her opinion, Judge Graber said that, if the county were to add new requirements or “enforce the ordinance unequally,” or if added facts came to light, the Nordykes or another legal gun show operator could file a new Second Amendment challenge. The four other judges said essentially the same thing in separate opinions written by Circuit Judge Diarmuid F. O’Scannlain and Sandra S. Ikuta.

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